AI Index MDE 15/017/2010
26 July 2010
Israel/Occupied Palestinian Territories: Accountability must be paramount as UN considers investigations on Gaza conflict
Amnesty International has reiterated its urgent call for accountability for alleged violations of international humanitarian and human rights law committed by the parties to the conflict in Gaza and southern Israel as the UN Secretary-General prepares to assess domestic investigations.
Between 27 December 2008 and the 18 January 2009, around 1,400 Palestinians and 13 Israelis were killed during the 22-day conflict in Gaza and southern Israel – three of the Israelis and the majority of the Palestinian fatalities were civilians. In September 2009 a UN-mandated Fact-Finding Mission led by Justice Richard Goldstone published its findings (the Goldstone Report) which concluded that both Israeli forces and Palestinian armed groups had committed grave violations of international law, including war crimes and possible crimes against humanity during the conflict. The UN General Assembly resolution of 2 November 2009 (A/Res/64/10) endorsed the Report of the Fact Finding Mission and, in line with the Report’s recommendations, called on the Israeli government and the Palestinian side to undertake “independent, credible” investigations in conformity with international standards into the serious violations reported by the Mission. The General Assembly also asked the UN Secretary-General to report back to it with an assessment of the Israeli and Palestinian investigations after three months. After an initial assessment on 4 February 2010, the General Assembly, in a second resolution passed on 26 February 2010, requested that the Secretary General evaluate the investigations again within a further five months.
As this five-month period draws to a close, Amnesty International continues to be concerned about the limited extent of the domestic investigations, which have so far failed to be conducted consistently with international law and standards requiring prompt, thorough, independent and impartial investigations. The organization is also concerned that neither of the parties have demonstrated a genuine commitment to ensure that if those investigations produce sufficient admissible evidence, each suspect will be prosecuted in a fair trial without the possibility of the death penalty and that full reparations will be provided to the victims. Amnesty International has repeatedly called for the establishment of an independent committee of experts to assist the Secretary General in his assessment of the domestic investigations. On 25 March 2010 the Human Rights Council established separately a Committee of Experts which will report to the Council in its 15thsession in September 2010.
If the respective parties fail to conduct investigations that meet international law and standards, Amnesty International considers that the international community will need to assume the responsibility to ensure justice, truth and full reparations to the victims. If so, one means to achieve this would be for the UN Security Council to refer the situation to the International Criminal Court for investigation.
A year and a half after the conflict in Gaza and southern Israel ended, the victims have yet to obtain justice, truth or full reparations; the perpetrators on both sides have yet to be held to account.
The international community must not fail in its duty to ensure that these objectives are achieved if the parties to the conflict show that they are unable or unwilling to achieve them.
Amnesty International continues to be concerned that the independence and impartiality of the Israeli investigations is severely compromised by the fact that all these investigations have been carried out by army commanders or by the military police. In addition, these inquiries are overseen by the Military Advocate General (MAG), whose office cannot be considered a disinterested party as it provided legal advice to Israeli forces on their choice of targets and tactics during the 22-day conflict.
The Israeli authorities have periodically released some, but only partial, information about their investigations. This lack of transparency has impeded independent scrutiny of these investigations. According to the Israeli authorities, criminal investigations by the military police were opened into 47 incidents. Around 100 other incidents involving alleged violations of the laws of war by the Israeli forces during its 22-day military offensive in Gaza however, were considered only in operational debriefings – which the Israeli military terms “command investigations”. The army commanders conducting these debriefings do not have the necessary expertise to investigate alleged crimes under international law, and cannot be considered independent. Also, problematically, these debriefings are confidential. If a commander should decide to refer an incident for criminal investigation, self-incriminatory testimony given by soldiers in the debriefing would not be admissible in court. Further, when the debriefings are closed without being referred for criminal investigation – as has been the case in the vast majority of cases thus far – it is not possible for independent experts to review the proceedings or the evidence behind the decision not to open a criminal investigation.
To date, just one case considered by the Israeli inquiries has yielded a criminal charge, trial and conviction. This relates to a case of looting in which an Israeli soldier stole a Palestinian’s credit card. Criminal charges have been filed in two additional cases which have yet to be concluded – one concerns the alleged use of a nine-year-old boy as a “human shield” by two Israeli soldiers and the other the killing of two women for which one Israeli soldier has been charged with manslaughter. According to the latest official update on investigations (published on 19 July by the Israeli government) the military police are still investigating allegations against Israeli forces relating to the al-Sammouni family, concerning not only a large number of civilian fatalities and injuries but also the denial of medical and humanitarian access to wounded family members.
The latest official update also states that the Military Advocate General decided in three additional incidents to employ disciplinary measures rather than take legal action against members of the Israeli military. These incidents include another case of a Palestinian civilian being used as a “human shield”; a missile strike on the Ibrahim al-Maqadma Mosque which resulted in a large number of civilian casualties; and the Israeli forces’ shelling on 15 January 2009 of the main compound of the United Nations Relief and Works Agency (UNRWA) in Gaza City in which hundreds of civilians were sheltering.
Some of the incidents the Israeli military has decided do not warrant criminal investigation are cases which appear to have been serious violations of international humanitarian law and which Amnesty International maintains require effective, independent investigation. These include Israeli attacks on UN facilities, civilian property and infrastructure, attacks on medical facilities and personnel, and incidents in which large numbers of civilians were killed and injured as a result of reckless conduct, disregard for civilian lives and consistent failure on the part of Israeli forces to distinguish between military targets and civilians and civilian objects.
Despite enduring concerns expressed by Amnesty International over Israel’s extensive use of white phosphorus in Gaza, the Israeli government’s January 2010 update contends that there are “no grounds to take disciplinary or other measures for the IDF’s [Israeli Defence Force] use of weapons containing phosphorous”. This is despite the fact that throughout Israel’s 22-day military operation in Gaza Israeli forces repeatedly fired artillery shells containing white phosphorus into densely populated residential areas, causing death and injuries to civilians. The July update reports that after the shelling of the UNRWA compound “the IDF immediately imposed revised restrictions on the use of smoke-screening munitions containing white phosphorous near sensitive sites (including the requirement of a several hundred meters buffer zone). These restrictions were in place through the remainder of the Gaza Operation.” But Amnesty International notes with concern that these restrictions failed to prevent white phosphorus shells causing further deaths and injuries to civilians in Gaza (including in an UNRWA school in Beit Lahiya, struck by white phosphorus shells on 17 January 2009).
In a potentially positive development, the July update states that Israel’s Chief of General Staff has “ordered the establishment of a clear doctrine and orders on the issue of various munitions which contain white phosphorous” and that “the IDF is in the process of establishing permanent restrictions on the use of munitions containing white phosphorus in urban areas.” The nature and extent of these restrictions are not clearly explained. Given the inadequacy of the restrictions the Israeli authorities say they implemented in the last few days of their military operation in Gaza in 2008/9, Amnesty International considers that they must immediately prohibit absolutely the use of such weapons in densely populated residential areas.
Other Israeli attacks which resulted in civilian injuries and deaths have been dismissed as “operational errors” and the soldiers involved have not been criminally charged or disciplined.
As regards the Palestinian side, the information available to Amnesty International indicates that the Hamas de facto administration has failed to mount any credible investigations into the alleged war crimes and other serious violations of international law committed by Hamas and other Palestinian armed groups. Documents submitted to a UN official in Gaza on 2 February 2010 by the Ministry of Justice indicated that Hamas had: 1) established a 12-person governmental committee (headed by the Hamas de facto Minister of Justice) to monitor the implementation of the recommendations of the Goldstone Report; 2) established a three-person independent international committee of experts in international law to guarantee the transparency and impartiality of the steps taken by the government; 3) commissioned the public prosecutor in Gaza to investigate all alleged violations of international law reported to him. However, these documents focus on alleged violations by the Israeli military and fail to address adequately the firing of indiscriminate rockets by Palestinian armed groups into southern Israel which killed three civilians and injured others during the conflict.
The Goldstone Report found that “these attacks constitute indiscriminate attacks upon the civilian population of southern Israel and that, where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity” (A/HRC/12/48, paragraph 108).
In respect to the firing of indiscriminate rockets and mortars, the response from Hamas stated: “All Palestinian armed groups have published declarations that they did not target civilians but rather that they targeted military targets but tried to avoid civilian targets”. This contradicts statements made by armed groups, including Hamas’ military wing, before and during the conflict in which they claimed responsibility for rocket attacks, which they stated were directed at civilian towns and which killed or injured civilians and damaged civilian homes.
Armed groups have an obligation to respect applicable international humanitarian law. The firing of indiscriminate rockets by Palestinian armed groups into Israel between 27 December 2008 and 18 January 2009 killed three Israeli civilians and caused further civilian injuries and damage to civilian property. Whether these attacks were intended to hit military or civilian objects, the use of unguided projectiles which could not be directed at specific targets, placed the civilian population at risk and violated international humanitarian law.
Since February 2010, Amnesty International has received no further information that would indicate that Hamas is undertaking credible investigations into alleged violations by Palestinian actors during the conflict, or that there are any attempts by Hamas to charge and prosecute those responsible.
As the Palestinian Authority (PA) was not a party to the conflict in Gaza and southern Israel, Amnesty International has not called on them to conduct investigations. The PA did establish a Committee of Investigation in January 2010 however and made preliminary submissions to the UN Secretary General on 29 January 2010. On 12 July 2010, the Committee’s report was submitted to the UN.